SZGWT v Minister for Immigration
[2005] FMCA 1977
•08 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGWT v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1977 |
| MIGRATION – Refugee – claims to fear persecution on the basis of religion – failure to attend the Tribunal hearing – statutory obligations regarding invitation to the hearing satisfied – failure to take into consideration a relevant matter – Tribunal’s obligation to investigate the applicant’s claims – republishing of the applicant’s claims for the purposes of s.424A – no reviewable error – application dismissed. |
| Migration Act 1958 (Cth), ss.65, 36(2), 427(1)(d), 441G, 441G(1), 441G(2), 425, 425A, 441A, 441C(4), 425A(3), 424A(1), 424A(2), 424A(3)(b) Migration Regulations 1994, Regulation 4.35D. Federal Magistrates Court Rules 2001, rr. 21.02(2)(a). |
| SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 Abebe v The Commonwealth (1999) 197 CLR 510 NAST vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 Le v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 51 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 |
| Applicant: | SZGWT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2058 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 08 December 2005 |
| Date of Last Submission: | 08 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 08 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. Warner Knight |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2058 of 2005
| SZGWT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
This is an application filed in this Court on 4 August 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 December 2003, and notified to the applicant by letter dated 15 January 2004, to affirm the decision of a delegate of the respondent Minister made on 11 April 2003 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
The applicant is a citizen of the People’s Republic of China who arrived in Australia with a temporary business visa in February 2003. On 20 March 2003 he applied to the first respondent’s Department for a protection visa. The applicant’s claims to protection can be found in his application for a protection visa, reproduced at Court Book (“CB”) 1 to CB 34 and particularly in an attached statement found at CB 29 to CB 30. He made no further claims in his application for review to the Tribunal, and stated in that application “please see my file at DIMIA.”
The applicant claimed to fear persecution in China on the basis of his religion. He claimed that through his wife’s brother he had become a devoted adherent of “Yi Guan Dao”, an organisation that the applicant claimed was “unlawful” in China. The applicant claimed that many Yi Guan Dao supporters had been jailed, and that some were executed. He claimed that “starting from 1999 the government has been persecuting Falun Gong and then all the unauthorised religions.” He claimed that when police, by offering rewards, encouraged local residents to “report” Yi Guan Dao members, the applicant, through an overseas contact, arranged a passport to come to Australia “on a visitor’s visa.”
In his application for review to the Tribunal the applicant nominated his migration agent to be the authorised recipient of all correspondence about his application, and indicated that such correspondence should be sent to his migration agent (CB 48). He also authorised the agent to act on his behalf in relation to his case. At CB 48 the applicant set out the agent's address. The applicant also separately provided, at CB 47, a home address, and on the same page indicated his mailing address as being the same as that of his migration agent. Relevantly and further, the Tribunal's application form used by the applicant contained an advice that if an authorised recipient was nominated, then all correspondence would be sent to that person.
By letter dated 28 October 2003 (CB 54 to CB 55) the Tribunal advised the applicant that it had considered the material before it but was unable to make a decision in the applicant’s favour. It invited the applicant to a hearing before the Tribunal to give evidence, and put argument in support of his claim. The Tribunal scheduled the hearing for 9:30 a.m. on 11 December 2003. The letter contained information that if the applicant was unable to attend the hearing he should contact the Tribunal immediately, and if he did not attend the hearing, and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice. The letter enclosed a “Response to Hearing Invitation” form and asked the applicant to complete this form. This letter was sent to the applicant’s authorised recipient for correspondence, at the address provided, with a copy sent to the applicant both at his mailing address (which was the same as the authorised recipient's address) with a copy also sent to the applicant’s home address.
On 4 November 2003 the Tribunal received the completed “Response to Hearing Invitation” form which indicated that the applicant did want to attend the hearing (CB 56). On 11 November 2003 Tribunal again wrote to the applicant advising of a change of time, but not date, in relation to the scheduled hearing (CB 57 to CB 58). The Tribunal advised the applicant that the hearing would now be at 2 p.m. The letter was again sent to the authorised recipient at the address provided with a copy sent to the applicant's mailing address which again was the same as the address for the authorised recipient. Another copy was sent to the applicant’s home address. In this regard I note the registered post notations at CB 57. The applicant did not attend the hearing before the Tribunal at the scheduled time and date (CB 59). The Tribunal, as reported in its decision record at CB 74, was satisfied that it had discharged its obligation to give the applicant an opportunity to appear before it to give evidence and therefore proceeded to make a decision pursuant to s.426A of the Migration Act 1958 (“the Act”) on the basis of the material that had been put before it.
The Tribunal’s “Findings and Reasons” are reproduced at CB 75.5 to CB 76. The Tribunal found:
1)The applicant’s claim to be an adherent of an underground religion which is unlawful in China (Yi Guan Dao) amounted to “nothing more than an assertion” (CB 76.2).
2)The statement that accompanied the protection visa application, while purporting to detail persecution of Yi Guan Dao members in China generally, did not specify what rituals the applicant undertook or any other details upon which the Tribunal could be satisfied that the applicant was an adherent of Yi Guan Dao as he claimed (CB 76.3).
3)In the absence of any further evidence that the applicant may have provided at the hearing, the Tribunal was unable to be satisfied that he was an adherent of Yi Guan Dao, or that there would be a real chance that he would be persecuted for reasons of his religion if he returned to China now, or in the reasonably foreseeable future (CB 76.5).
On this basis the Tribunal found that it could not be satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he returned to China, and that as a result he was not a person to whom Australia had protection obligations under the Refugees Convention.
Ms. Warner Knight for the respondents submitted that on 12 February 2004 the applicant filed an application in the Federal Court seeking review of the Tribunal’s decision. That matter was transferred to this Court and ultimately the applicant filed a notice of discontinuance on 6 October 2004 (see CB 78 to CB 83). I gave priority to hearing this matter as the applicant has been in Immigration Detention since the time of filing his second application to the Court.
The applicant’s application, filed on 4 August 2005, complains:
“1) If I go back to my country I will be risk of suffering persecution within the meaning of the 1951 convention relating to the status Refugees and the 1967 protect (sic:protocol) relating to the Status Refugees.
2) Member of Refugee Review Tribunal failed to understand my claim and failed to consider relevant matters. Further particulars to be provided.
3) The respondent refused to grant my protection visa application without any proper grounds and proper investigation.”
No further particulars were provided. No amended application has been filed. The applicant did access the Court’s Legal Advice Scheme in relation to the earlier proceedings (involving the same Tribunal decision) and was therefore not eligible to access this scheme on the second occasion.
At the hearing before me the applicant appeared unrepresented with the assistance of an interpreter in the Mandarin language. Ms. Warner Knight appeared for the respondents. The applicant stated that he did not agree with the “content of his case”. He indicated that he told his agent “about my circumstances”. He appeared to complain that the agent did not adequately represent him before the Tribunal or accurately put to the Tribunal the applicant’s case. He claimed that it was only at some later time that he realised that the agent “did not write the submission based on my actual circumstances”. Further, by way of explanation regarding the failure to attend the Tribunal’s hearing, the applicant appeared to indicate that it was due to some failure by his migration agent. I noted with the applicant that on the material before me, it was clear that the applicant had nominated an authorised recipient for correspondence. In these circumstances, the Tribunal sent the letter of notification about the Tribunal hearing, in compliance with its statutory obligations, to the nominated address. In addition it sent two copies of its letters to his home address and mailing addresses. The Tribunal clearly discharged its duty in that regard just with the letter sent to the agent/authorised recipient. It exceeded its statutory obligation with the two other letters. The applicant indicated that after my explanation he now understood this, and that he had nothing further to say except that the migration agent had handled his case in “problematic way” and to request that “you reconsider my case”. I then explained to the applicant the different functions of the Tribunal as opposed to the Court. I further explained that if he had a complaint about his migration agent that there were proper avenues through which such complaints may be pursued, but that such a complaint could not, as he put it, assist him before this Court. On that basis, nonetheless, I proceeded to examine the grounds of complaint raised in his application for review.
The applicant’s first ground of complaint in his application is essentially a restatement of the claim made in his protection application that he would be at risk if he returned to China. This, in the absence of any particularity, clearly does not demonstrate any jurisdictional error on the part of the Tribunal.
The applicant’s second complaint is that the Tribunal failed to “understand” his claim, and failed to consider “relevant matters”. While the applicant promises further particulars, nothing has been provided. Nor was the applicant able at the hearing before me to provide anything further. In this regard I note that s.65 of the Act makes it a requirement that, in effect, a decision maker, when deciding to grant or refuse a visa, must be satisfied as to certain prescribed criteria relevant to that visa. In relation to a protection visa, s.36(2) of the Act relevantly requires that the Tribunal be satisfied that the applicant is a non-citizen in Australia in respect of whom the Minister (decision maker) is satisfied Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol. In particular, that the applicant meets the definition of refugee as set out in Article 1A(2) of the Refugees Convention. This legislative scheme requires a positive state of satisfaction as to whether protection obligations are owed. If that level of satisfaction cannot be reached, a refusal decision is mandated: SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16]:
“[15] It can be seen from the form of that sub-section that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied. A criterion for a protection visa specified in s.36(2) of the Act is;
‘...that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.’
[16] It can be seen that satisfaction of that criterion depends not on a particular matter being established, but on the Minister’s attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention. As Gummow and Hayne JJ observed in Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187] in relation to the Tribunal when standing in the shoes of the Minister:
‘The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.’
Moreover, the Tribunal was entitled, in assessing whether the appellant had a well-founded fear of persecution if he were returned to Sri Lanka to take account of the fact noted in the extract quoted at [6] above that "according to the Applicant’s own evidence he departed Sri Lanka legally and without difficulty.”
See also NAST vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5]:
“[4] In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.
[5] In its reasons for decision, the RRT said that in view of the first appellant’s failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.”
In the matter before me it is clear that the Tribunal considered the claims as put by the applicant (there was nothing before the Tribunal to support the applicant’s claim now of any failure on the part of the migration agent). It could not be satisfied on the material before it that the applicant was a person to whom Australia owed protection obligations. The Tribunal made findings on the material before it, and it gave reasons for those findings. I note further that in similar circumstances, where an applicant failed to appear before the Tribunal in the face of a letter putting the applicant on notice that the Tribunal was not prepared to make a decision in favour of the applicant on the material before it, a Full Federal Court has described rejection of the application as “an inevitable consequence” of the non-attendance: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. Clearly the applicant was put on notice as to the Tribunal's preliminary view and given the opportunity to provide further material by way of evidence at a hearing before the Tribunal or oral submissions in support of the claims. The applicant, who had the assistance (certainly in relation to the invitation to the hearing) of a migration agent before the Tribunal for whatever reason, and without explanation, chose not to attend. The applicant clearly had some successful communications with his migration agent when he advised, at first, that he would attend the hearing. This complaint does not succeed.
The applicant’s third ground of complaint is that the protection visa was refused without “proper grounds and proper investigation”. There is clearly some overlap with the previous ground of review to the extent that this can be seen as a complaint that the Tribunal failed to consider all relevant matters. But to the extent that there is a claim that the Tribunal failed to properly investigate the applicant’s claims, although the Tribunal has the power to investigate the applicant’s claims pursuant to s.427(1)(d) of the Act, this section is clearly permissive, and not mandatory, in its operation. The duty to investigate and inquire into an applicant’s claims has been construed narrowly by relevant authorities. I note the Full Court, comprising of Heerey, Goldberg and Weinberg JJ. in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274, upholding the decision of the primary judge, stated at [28] that:
“[I]t was unlikely that the mere failure to exercise a power under s427(1)(d) of the Act to cause inquiries to be made would amount to a breach of any duty by the Tribunal in the absence of some special and exceptional circumstances such as the failure of the Tribunal to honour an undertaking to enquire...”
I also note both the Full Federal Court decision of Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151, and Le v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 51, the Full Court interpreted the duty to inquire as limited, and in both cases held that there was no obligation to make enquiries.
In the matter before me the Tribunal was unable to be satisfied on the material presented to it that the applicant was a person to whom Australia owed protection obligations. In those circumstances it invited the applicant to attend at hearing, and despite indicating that he would attend, the applicant did not do so, and made no effort to contact the Tribunal further in this regard. There are no special or exceptional circumstances evident. In all these circumstances, notwithstanding in any event, the limited duty that a Tribunal owes to conduct further investigations into an applicant’s claims, any complaint by the applicant that the Tribunal should have conducted further investigation, in the case where a Tribunal has invited an applicant to present further evidence, and the applicant has failed to do so, clearly cannot succeed.
In relation to the third complaint the applicant makes reference to “the respondent” as refusing to grant the protection visa in circumstances where, at the time of filing of his application to the Court, the only respondent was the Minister for Immigration and Multicultural and Indigenous Affairs. I note further that, in contrast, his second complaint was made specifically with reference to “member of Refugee Review Tribunal”. To the extent therefore that the applicant may now be seeking to complain about the decision of the Minister’s delegate (although he did not raise this at the hearing before me) then I take the view, that the applicant was really seeking review of the Tribunal's decision as the delegate's decision is no longer operative for the purposes of review. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”) at [80] McHugh J. said:
“The issuing of writs under s.75(v) of the Constitution and s.39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s.39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.”
I take the view that in seeking review of the decision by the Tribunal, the applicant’s conduct in this regard would be seen as inconsistent with now seeking review of the delegate’s decision by this Court.
Given that I have before me an unrepresented applicant I also considered the following matters, even though they were not raised by the applicant:
1)The adequacy of notice of the invitation to appear at the hearing before the Tribunal (CB 64).
The date stamp on the Tribunal letter of 28 October 2003 (CB 62), shows that the copy of the letter inviting the applicant to a hearing which was sent to the applicant at his home address was returned to the Tribunal. In this regard I note specifically that it was returned to the Tribunal on 30 December 2003, after the making of the Tribunal's decision on 19 December 2003. But given that it was received by the Tribunal before the handing down of its decision, I should note that pursuant to s.441G of the Act the Tribunal complied with the requirement contained in s.441G(1) in that it gave the authorised recipient the document inviting the applicant to the hearing as it was required to do, in circumstances where the applicant had nominated his migration adviser as his authorised recipient. Section 441G(2) provides that having given this invitation to the authorised recipient, Tribunal was taken to have given the document to the applicant. But it was not wrong of the Tribunal to provide a copy of the document to the applicant personally. In relation to the letter of invitation therefore the Tribunal clearly discharged its obligation pursuant to s.425 of the Act in inviting the applicant to appear at hearing. The requirements of s.425A were met, and the applicant was taken to have received this invitation given that the letter was properly sent to the authorised recipient.
2)The letter advising of the change of time of the hearing on
11 December 2003.In this regard I note again that this letter was also sent to the authorised recipient, and the provisions outlined above in relation to s.441G of the Act, as applied to this case, meant that the applicant was taken to have received this letter, given that it was sent to the authorised recipient.
3)The relevant notice periods.
I note that the letter rescheduling the hearing was sent on
11 November 2003 for the hearing which remained unchanged (except as to time) as being scheduled on 11 December 2003. It was sent by one of the methods specified in s.441A of the Act, that is dispatched by pre-paid post, and pursuant to s.441C(4) of the Act is taken to have been received by the applicant (his authorised recipient) seven working days after the date of the letter. For the purposes of s.425A(3) the period of notice that must be given in the notice of invitation to appear at a hearing before the Tribunal is prescribed in Regulation 4.35D of the Migration Regulations 1994 (“the Regulations”), and is a period commencing when the applicant receives notice of the invitation to appear before the Tribunal, and ends at the end of 14 days after the day on which the notice is received. In the case before me this was clearly well before the date of the scheduled hearing,
11 December 2003.In summary therefore, both the initial invitation to the hearing, and the notification of the change in time, were sent at least to the applicant’s authorised recipient, and complied with the relevant statutory requirements. The letter notifying the change in the time similarly complied with the relevant notice periods. I can see no error arising from the Tribunal's actions in this regard.
4)Further to the Full Court's description of the “inevitable consequence” in NAVX, should there be said to be any issue arising out of the High Court's decision in SAAP, relating to what constitutes “information” for the purposes of s.424A(1) of the Act, when read in light of the Full Federal Court obiter in Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679, as to what constitutes and is encompassed in an application for the purposes of an application before the Tribunal, I take the view that the applicant expressly relied upon his statements to the first respondent's Department which formed part of his protection visa application, as subsequently being part of his application to the Tribunal for review. He therefore gave that information to the Tribunal for the purpose of his application for review. The exemption set out in s.424A(3)(b) from the requirement to put any such information contained in his protection visa application pursuant to s.424A(1) in the manner set out in s.424A(2) would in these circumstances apply. The applicant clearly stated in his application to the Tribunal:
“Please see my file at DIMIA”
In this respect I am guided by Gray J., in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 in that the applicant could have had no other intention making this statement as to why he considered himself to be a refugee, than to put before the Tribunal the claims and material that he had put before the first respondent's Department.
Clearly the applicant made claims before the first respondent's Department when seeking a protection visa, on the basis of his assertion to be a member of an underground religion. He was dissatisfied with the refusal of the protection visa application, and sought review by the Tribunal. The only material that he put before the Tribunal was to refer to the material that he had put before the first respondent's Department. Nothing further was provided. The Tribunal properly took steps to invite the applicant to a hearing. Neither the applicant, nor his adviser who was acting on his behalf, approached the Tribunal, with any explanation as to the applicant's ultimate failure to appear at the hearing, either before or after the scheduled time and date of the hearing. In all the circumstances the Tribunal was entitled to proceed to a decision on what was before it. It was clearly open to the Tribunal to find on what was before it that it could not be satisfied that the applicant had a well founded fear of being persecuted for a Convention reason if he returned to China. I can see no error, let alone jurisdictional error in the Tribunal’s decision. The application is dismissed on that basis.
The respondent Minister has also sought that I make an order that the applicant not be allowed to file any further applications in this Court seeking review of this Tribunal decision or the delegate’s decision, without prior leave of the Court. The first respondent, in particular, relies on CB 78 to CB 83, being copies of Court documents which reveal that the applicant sought to bring the same Tribunal decision of which he complains before me now, before the Federal Court on 12 February 2004. This matter was transferred to this Court by order of Allsop J., on 19 July 2004. The applicant discontinued proceedings before this Court in relation to this matter (CB 82). Subsequently Barnes FM, made an order in relation to costs. Before me today the applicant was unable to explain why he chose to discontinue previous proceedings before this Court. In all the circumstances, it is appropriate that I make the order sought by the first respondent in this regard.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Sybilla Waring-Lambert
Date: 24 January 2006